McCloud v. State
166 Ga. 436
Ga.
1928
Check Treatment
Hines, J.

(After stating the foregoing facts.)

The special grounds of the motion for new trial, from one to seventeen inclusive, complain of the refusal of the judge to give to the jury certain instructions as requested by counsel for the defendant. So far as these instructions were correct and applicable, they were fully covered by the general charge; and for this reason the refusal of the requests does not require the grant of a new trial.

A trial judge errs if he treats an inculpatory admission as a confession, and gives in charge to the jury the law relating to confessions. Dumas v. State, 63 Ga. 600 (5); Jones v. State, 65 Ga. 147; Covington v. State, 79 Ga. 687 (7 S. E. 153); Fletcher v. State, 90 Ga. 468 (17 S. E. 100); Lee v. State, 102 Ga. 221 (29 S. E. 264); Suddeth v. State, 112 Ga. 407 (37 S. E. 747); Cleveland v. State, 114 Ga. 110 (39 S. E. 941); Smith v. State, 115 Ga. 586 (41 S. E. 984); Lucas v. State, 146 Ga. 315 (91 S. E. 72); West v. State, 155 Ga. 482 (11) (117 S. E. 380); King v. State, 163 Ga. 313 (11) (136 S. E. 154). If a defendant makes an extrajudicial statement in which he admits the commission of a homicide, but couples the admission with a statement of facts which excuses or justifies the homicide, such statement is not a confession; and the judge errs in charging the law relating to confessions. Powell *442v. State, 101 Ga. 9 (4) (29 S. E. 309, 65 Am. St. R. 277); Owens v. State, 120 Ga. 296 (48 S. E. 21); Harris v. State, 152 Ga. 193 (6) (108 S. E. 777). In Owens v. State, supra, this court was divided upon this question; but after full and careful reconsideration, we have reached the conclusion that the opinion of the majority is supported.by the previous and subsequent rulings of this court, by the weight of outside authorities) and by sound reasoning. 16 C. J. § 1467d; State v. Abrams, 131 Iowa 479, 108 N. W. 1041; People v. Cismadija, 167 Mich. 210, 132 N. W. 489; State v. Thomas, 135 Iowa, 717, 109 N. W. 900; 1 R. C. L. 550, § 99. Contra: State v. Porter, 32 Or. 135, 49 Pac. 964; Mortimore v. State, 24 Wyo. 452, 161 Pac. 766. It seems unreasonable to hold that a person who admits the commission of a homicide, but in the same breath states facts which excuse or justify the homicide, confesses that he is guilty of murder.

Where there is evidence tending to show that the defendant admitted the killing, and he states no circumstances of excuse or justification in connection with such admission, the trial judge does not err in charging upon the subject of confessions. Coney v. State, 90 Ga. 140 (15 S. E. 746); Well v. State, 140 Ga. 779 (79 S. E. 1126); Nail v. State, 142 Ga. 595 (3) (83 S. E. 226); Edwards v. State, 159 Ga. 419 (126 S. E. 16). In a number of cases this court has held that a statement, made by a defendant charged with murder, that he did the killing because of certain facts which furnish no legal excuse or justification, amounts to a confession, and authorizes a charge of the law relating to confessions. Jones v. State, 130 Ga. 274, 278 (60 S. E. 840); Thompson v. State, 147 Ga. 745 (2) (95 S. E. 292) ; Bowden v. State, 151 Ga. 336 (5) (106 S. E. 575); Minter v. State, 158 Ga. 127, 132 (123 S. E. 23). Under the principle last ruled, we are of the opinion that the trial judge did not err in his charge to the jury upon the subject of confessions. In the defendant’s statement to the sheriff he admitted killing the deceased; and the facts stated by him in extenuation of his act did not excuse or justify the homecide. These facts, when considered with the evidence in the case, do not excuse or justify the killing by the defendant of the policeman, who had arrested him and taken him in custody. The undisputed evidence shows that the defendant had been guilty of disorderly conduct and was drunk, and that such disorderly conduct and drunkenness within the city *443limits of Bainbridge were punishable under the ordinances of the city. The deceased policeman had been called to arrest the defendant for the disorderly conduct which had taken place in a restaurant. The accused inquired of a bystander if the policeman was coming, and was told that he was coming in a trot. Thereupon the defendant went out of the back door of the restaurant, and the deceased came in at the front door and followed the defendant. According to the latter's statement as to how the killing occurred, made to the sheriff a few days after the homicide, the policeman overtook him on Broad street, and wanted him to go back to the restaurant where the disorderly conduct took place. He started back with the policeman, but stopped and told the officer that he was not the man, and that he was not going any further. The officer said, “Yes you are, God damn you, go ahead,” and reached for his gun. Then defendant shot the officer, and, as the officer staggered, shot him again, and continued to shoot him. When the dead officer was found his pistol was in its scabbard, undrawn, and his blackjack was in his pocket. The provocation given by these words and this menace would not free the defendant from the guilt and crime of murder. Malone v. State, 49 Ga. 210 (7). No presentation of weapons, without a manifest intention to use them presently, will justify the killing. Roberts v. State, 65 Ga. 430 (4a). “No motion a man can make, throwing his hand behind him . . will justify another in shooting him, unless the circumstances show that the man who was making that motion presently intended to shoot the slayer.” Bailey v. State, 70 Ga. 617 (4), 623.

But it may be said that, while the threats used by the deceased officer, and the reaching by that officer for his pistol, as claimed by the defendant, would not make a case of self-defense, these words and this gesture should be considered in determining whether the defendant acted under the fears of a reasonable man in shooting the deceased. Cumming v. State, 99 Ga. 662 (27 S. E. 177). In that case it was said: “It is true that in order to justify a homicide, there must be something more than mere verbal threats. There must be an appearance of imminent danger. The means of inflicting the threatened injury must apparently be at hand, and there must be some manifestation of an intention to inflict the injury presently; but it is not essential that there should be an actual assault.” In Taylor v. State, 121 Ga. 348; 355 (49 S. E. 303), this *444court reiterated this principle. The deceased made no threat of violence against the defendant. Being under arrest, the defendant refused to go with the policeman. Upon this refusal the officer used to him the language above set out, and reached for his pistol. It was not drawn. If the officer had drawn it, the defendant would not have been justified in slaying the officer in the absence of some manifestation by the officer of an intention to unlawfully inflict some injury presently upon him. Manifestly the officer was reaching for his pistol to enforce obedience on the part of the rebellious defendant to his arrest, and not with any purpose to kill the defendant or to inflict upon him some present injury. Under the circumstances, the statement of the defendant, in which he admitted the homicide, does not show any legal excuse or justification for the killing; and for this reason the court did not err in dealing with his statement as a confession.

The court charged the jury as follows: “The court charges you, gentlemen, under the facts and circumstances of this case, as made by the evidence of the State, that at the time of the alleged killing that the defendant was in the custody of the officer, although the officer may not have had his hands upon him — there is no disputing that he was in the custody of the officer.” The defendant assigns error on this charge, upon the ground that the court expressed and intimated an opinion upon the facts in the case. “It is error,” generally, “for the judge . . in any case . . in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this” law “shall be held by” this “court to be error, and the decision in such case reversed, and a new trial granted, with such directions as” this “court may lawfully give.” Penal Code, § 1058. To this general rule there are exceptions. It is not error for the judge to state to the jury a fact which is admitted, and on which there is no issue. Johnson v. State, 30 Ga. 426 (5). Where a killing is admitted, the court may so state in charging the jury. Hayes v. State, 58 Ga. 35 (4). While the judge is forbidden to express an opinion as to whether any particular fact has been proved, yet when the evidence to establish a fact is undisputed, and the fact is admitted by the accused on his trial, it is not error for the judge to assume such fact in formulating appropriate instructions to the jury. Taylor v. State, *445135 Ga. 622 (70 S. E. 237). When under the evidence a fact is not in dispute, the court may so instruct the jury. Under the undisputed evidence and the voluntary statement made by the defendant to the sheriff a few days after the homicide, the defendant had been arrested by the slain policeman for violations of the ordinances of the City of Bainbridge; and was in the custody of the officer at the time the defendant shot and killed the former. This being so, the trial judge did not err in so instructing the jury.

The other assignments of error do not require the grant of a new trial. Judgment affirmed.

All the Justices concur, except Bussell, C. J"., who dissents, and Atkinson, J., who dissents from the ruling in subdivision (d) of the second headnote.